Charter Application to Care Homes

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Citation:	Charter Application to Care Homes, CLNP 2518, <https://rvt.link/g4>, retrieved on 2025-07-30
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Last Updated:	2025/07/29

Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 SCR 624

18 There are four principal issues to be considered in this appeal. First, it must be determined whether, and in what manner, the Charter applies to the decision not to provide sign language interpreters for the deaf as part of the publicly funded scheme for the provision of medical care. Second, the Court must decide whether this decision constitutes a prima facie violation of s. 15(1) of the Charter. Having found such a violation, it must be determined whether it is saved by s. 1. After concluding that it is not, an appropriate remedy must be crafted.

Application of the Charter

19 There are two distinct Charter “application” issues in this case. The first is to identify the precise source of the alleged s. 15(1) violations. As I will develop later, in my view it is not the impugned legislation that potentially infringes the Charter. Rather, it is the actions of particular entities -- hospitals and the Medical Services Commission -- exercising discretion conferred by that legislation that does so. The second question is whether the Charter applies to those entities. In my view, the Charter applies to both in so far as they act pursuant to the powers granted to them by the statutes. I deal with each of these questions in turn.

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35 Having identified the sources of the alleged s. 15(1) violations, it remains to be considered whether the Charter actually applies to them. At first blush, this may seem to be a curious question. As I have discussed, it is a basic principle of constitutional theory that since legislatures may not enact laws that infringe the Charter, they cannot authorize or empower another person or entity to do so; Slaight, supra. It is possible, however, for a legislature to give authority to a body that is not subject to the Charter. Perhaps the clearest example of this is the power of incorporation. Private corporations are entirely creatures of statute; they have no power or authority that does not derive from the legislation that created them. The Charter does not apply to them, however, because legislatures have not entrusted them to implement specific governmental policies. Of course, governments may desire corporations to serve certain social and economic purposes, and may adjust the terms of their existence to accord with those goals. Once brought into being, however, they are completely autonomous from government; they are empowered to exercise only the same contractual and proprietary powers as are possessed by natural persons. As a result, while the legislation creating corporations is subject to the Charter, corporations themselves are not part of “government” for the purposes of s. 32 of the Charter.

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38 In Douglas, however, the same majority found that the Charter did apply to the mandatory retirement policy at issue, on the ground that Douglas College was, in light of its constituent Act, simply an emanation of government. I described the differences between McKinney and Harrison, on the one hand, and Douglas, on the other, at pp. 584-85 of the latter case:

As its constituent Act makes clear, the college is a Crown agency established by the government to implement government policy. Though the government may choose to permit the college board to exercise a measure of discretion, the simple fact is that the board is not only appointed and removable at pleasure by the government; the government may at all times by law direct its operation. Briefly stated, it is simply part of the apparatus of government both in form and in fact. In carrying out its functions, therefore, the college is performing acts of government, and I see no reason why this should not include its actions in dealing with persons it employs in performing these functions. Its status is wholly different from the universities in the companion cases of McKinney . . . and Harrison . . . which, though extensively regulated and funded by government, are essentially autonomous bodies. Accordingly, the actions of the college in the negotiation and administration of the collective agreement between the college and the association are those of the government for the purposes of s. 32 of the Charter. The Charter, therefore, applies to these activities.

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41 While it is well established that the Charter applies to all the activities of government, whether or not those activities may be otherwise characterized as “private”, this Court has also recognized that the Charter may apply to non-governmental entities in certain circumstances; see generally Robin Elliot, “Scope of the Charter’s Application” (1993), 15 Advocates’ Q. 204, at pp. 208-9. It has been suggested, for example, that the Charter will apply to a private entity when engaged in activities that can in some way be attributed to government. This possibility was contemplated in McKinney, where I stated the following, at pp. 273-74:

Though the legislature may determine much of the environment in which universities operate, the reality is that they function as autonomous bodies within that environment. There may be situations in respect of specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government, but there is nothing here to indicate any participation in the decision by the government and . . . there is no statutory requirement imposing mandatory retirement on the universities. [Emphasis added.]

I commented further on as follows, at p. 275:

I, therefore, conclude that the respondent universities do not form part of the government apparatus, so their actions, as such, do not fall within the ambit of the Charter. Nor in establishing mandatory retirement for faculty and staff were they implementing a governmental policy. [Emphasis added.]

The idea that certain activities of non-governmental entities may be viewed as the responsibility of government was further elucidated in my reasons in Lavigne where, after discussing McKinney, Harrison, Douglas and Stoffman, I stated as follows, at p. 312:

The majority in the above cases relied solely on the element of control in determining what fell within the apparatus of government, although it made clear that government may, in some circumstances, be subject to Charter scrutiny in respect of activities in the private sector where the government could be said to have some responsibility for that activity. [Emphasis added.]

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43 Two important points must be made with respect to this principle. First, the mere fact that an entity performs what may loosely be termed a “public function”, or the fact that a particular activity may be described as “public” in nature, will not be sufficient to bring it within the purview of “government” for the purposes of s. 32 of the Charter. Thus, with specific reference to the distinction between the applicability of the Charter, on the one hand, and the susceptibility of public bodies to judicial review, on the other, I stated as follows, at p. 268 of McKinney:

It was not disputed that the universities are statutory bodies performing a public service. As such, they may be subjected to the judicial review of certain decisions, but this does not in itself make them part of government within the meaning of s. 32 of the Charter. . . . In a word, the basis of the exercise of supervisory jurisdiction by the courts is not that the universities are government, but that they are public decision-makers. [Emphasis added.]

In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program. As I stated further on in McKinney, at p. 269, “[a] public purpose test is simply inadequate” and “is simply not the test mandated by s. 32”.

44 The second important point concerns the precise manner in which the Charter may be held to apply to a private entity. As the case law discussed above makes clear, the Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself “government” for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as “government” within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as “private”. Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly “governmental” in nature -- for example, the implementation of a specific statutory scheme or a government program -- the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.

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49 The situation in the present appeal is very different. The purpose of the Hospital Insurance Act is to provide particular services to the public. Although the benefits of that service are delivered and administered through private institutions -- hospitals -- it is the government, and not hospitals, that is responsible for defining both the content of the service to be delivered and the persons entitled to receive it. As previously noted, s. 3(1) states that every person eligible to receive benefits is “entitled to receive the general hospital services provided under this Act”. Section 5(1) defines “general hospital services” to include various services normally available in hospitals. As the definition of “hospital” in s. 1 makes clear, moreover, hospitals are required to furnish the general hospital services specified in the Act. While no single hospital makes all of these services available, the net effect of the Act is to entitle every qualified person to receive, and to require hospitals to supply, a complete range of medically required hospital services. Indeed, if the legislation did not assure this, it would run afoul of the Canada Health Act. It is also apparent that while hospitals are funded on a “lump sum” and not a “fee-for-service” basis, they are not entirely free to spend this money as they choose. This is apparent from s. 10(1) of the Act, which mandates the annual payment of a sum “determined by the minister to reimburse the hospital . . . for the cost of rendering to beneficiaries those general hospital services authorized by this Act the hospital is required by the minister to provide for beneficiaries”, as well as from s. 15(3)(c), which authorizes the minister to make “payments to hospitals for the service provided for under this Act” and s. 13(1), which provides that payments to a hospital “for services rendered by it . . . shall be deemed to be payment in full for the services. . . .”

Stoffman v. Vancouver General Hospital, 1990 CanLII 62 (SCC), [1990] 3 SCR 483

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In my respectful view, the application of these three tests leads inexorably to a finding that the Charter applies to the Vancouver General Hospital.

1. Application of the Criteria to the Vancouver General Hospital

(a)The "Control" Test

A review of the various connections between the Province and the Hospital leads me to conclude that the provincial government exercises a substantial amount of control over the appellant. In particular, the government has exercised control over the Vancouver General Hospital in three areas: (1) governing structure; (2) policy; and (3) funding.

Dealing first with control over the governing structure of the Hospital, the Hospital Act, R.S.B.C. 1979, c. 176, sets out the function and powers of the Hospital and its constituent elements. Section 30 provides that the Lieutenant Governor may appoint inspectors whose function it is to inspect the accounts, books, equipment and any other thing on or about the hospital. Section 37 provides that the Lieutenant Governor may, by regulation, establish one or more medical appeal boards. These boards are vested with the jurisdiction to review management decisions regarding permits to practise medicine or dentistry in the Hospital. Under s. 2(1)(c) of the Act every hospital is required to have a properly constituted board of management. It is in this Board that the governance of hospital affairs is largely reposed.

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In my respectful view, the conclusion I have reached respecting the general relationship of control which the Province has with the Hospital is strengthened when it is recognized that the government also has specific control over the particular action in issue in these appeals. Regulation 5.04 would be totally ineffectual without the prior written approval of the Minister. Indeed, had the Minister not been prepared to approve the Regulation, he had the power to forestall its enactment and compel the Board of Trustees to enact a by‑law more to his liking. In such circumstances I fail to see how the Regulation could be characterized as beyond government control or as anything other than a simple reflection of government policy. To my mind, the fact that the Province through the Minister had the power to treat the by‑law in this way provides an exceedingly strong indication that what is at issue in these appeals is government action. Indeed, in this case I might be prepared to find that the requirements of s. 32(1) are met on the basis of the control test alone. It is not necessary to do so, however, since in my view the government function test and the government entity test provide further support for my conclusion that the Charter applies to the Vancouver General Hospital.

(b) The "Government Function" Test

As I indicated in McKinney, in applying the "government function" test, the general principle is that a function becomes governmental because a government has decided to perform it, not because the function is inherently governmental.

Public health in general and hospitals in particular have been supported by local and provincial governments in Canada since pre‑Confederation times. In 1830, for example, the legislature of Upper Canada provided funding for the hospital at York established by the Lieutenant Governor, Sir John Colborne: see An Act to grant a sum of Money to His Majesty in aid of the York Hospital, S.U.C. 1830, c. 31. In British Columbia the legislature enacted in 1869 a statute conferring on the Governor‑in‑Council power to establish local health boards and to regulate sanitary and other conditions in hospitals: see An Ordinance for promoting the Public Health in the Colony of British Columbia, C.S.B.C. 1877, c. 83. The legislature of British Columbia also passed the Insane Asylums Act, C.S.B.C. 1888, c. 61, providing for the establishment of mental hospitals in the Province. Finally, in 1888 it instituted a complete regime of public health under the Health Act, R.S.B.C. 1897, c. 91. In 1832 the legislature of Lower Canada passed an Act to support certain hospitals: see An Act to appropriate certain sums of money for the support of the Emigrant Hospital at Quebec and of the Fever Hospital at Point Levi and for other purposes therein mentioned, S.L.C. 1832, c. 15. And in New Brunswick the legislature established a Board of Health in the City and County of St. John and conferred on the Board authority to "purchase, build or hire" hospitals and power to regulate them: see An Act to establish a Board of Health in the City and County of Saint John, S.N.B. 1855, c. 40, s. 11.

Section 92(7) of the Constitution Act, 1867, gives the provinces exclusive jurisdiction over

92. . . .

7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.

Pursuant to this grant of authority provincial legislatures have become increasingly involved over the years in the public health and hospital area. For example, in Manitoba the legislature enacted The General Hospital Act, C.S.M. 1880, c. 26, which established the Winnipeg General Hospital. The Nova Scotia legislature, through Title VI of the R.S.N.S. 1900, set up a regime of hospitals and public health regulation. Chapter 47 [Of Local Hospitals] Title IV provides that municipal and town councils shall be authorized to establish and support local public hospitals. In Ontario, the legislature provided financial aid to a number of hospitals through The Charity Aid Act, R.S.O. 1877, c. 223. They also ensured the government's right to inspect such facilities through The Prison and Asylum Inspection Act, R.S.O. 1877, c. 224, s. 14.

Finally, the administration of hospitals in the provinces is under the general authority of provincial Ministers of Health: see, for example, Public Hospitals Act, R.S.O. 1980, c. 410; Hospitals Act, R.S.A. 1980, c. H‑11; The Hospital Standards Act, R.S.S. 1978, c. H‑10; and An Act Respecting the Ministère de la santé et des services sociaux, R.S.Q., c. M‑19.2.

This brief overview of the legislation in place both before and after Confederation leads me to conclude that the establishment and maintenance of hospitals is a traditional function of government.

(c) The "Statutory Authority and the Public Interest" Test

It has already been established that the Hospital is broadly empowered to conduct its affairs through its "enabling" statutes. It has also been established that government has traditionally assumed a responsibility for the provision of basic medical services to its citizens. Justification for state involvement in the public health field is not hard to find. Simply put, government has recognized for some time that access to basic health care is something no sophisticated society can legitimately deny to any of its members. Less philosophically, government has also recognized that the promotion and protection of health is crucial to the maintenance of a viable and productive society.

I believe that the fact that the Hospital is established and operates pursuant to statutory authority, is heavily regulated by government and discharges a traditional government function in the public interest brings it within the concept of "government" for purposes of s. 32. Regulation 5.04 is therefore subject to review under s. 15 of the Charter.

Homes for Special Care Act, R.S.O. 1990, c. H.12

1 In this Act,

“home for special care” means a home for the care of persons requiring nursing, residential or sheltered care; (“foyer de soins spéciaux”)

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Regulations

7 The Lieutenant Governor in Council may make regulations with respect to homes for special care for,

(a) their construction, location, alteration, equipment, safety, maintenance and repair;

(b) their inspection, control, government, management, conduct, operation and use;

(c) their administrators and other officers and staffs and the powers and duties thereof;

(d) their classifications, grades and standards, and the classification of residents, and regulating and prescribing the rates and charges for residents, and prescribing the liability therefor;

(e) the admission, treatment, care, conduct, control, custody and discharge of residents or of any class of residents;

(f) Repealed: 1997, c. 15, s. 7 (3).

(g) providing for the licensing of homes for special care under section 5 and the renewal and cancellation of the licences;

(h) prescribing the amounts to be paid by the Minister for the care and maintenance of residents in homes for special care licensed under section 5;

(i) any matter necessary or advisable to carry out effectively the intent and purpose of this Act. R.S.O. 1990, c. H.12, s. 7; 1997, c. 15, s. 7 (3, 4).

Residential Tenancies Act, 2006, S.O. 2006, c. 17

2 (1) In this Act,

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“care home” means a residential complex that is occupied or intended to be occupied by persons for the purpose of receiving care services, whether or not receiving the services is the primary purpose of the occupancy; (“maison de soins”)

“care services” means, subject to the regulations, health care services, rehabilitative or therapeutic services or services that provide assistance with the activities of daily living; (“services en matière de soins”)

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139 (1) There shall be a written tenancy agreement relating to the tenancy of every tenant in a care home. 2006, c. 17, s. 139 (1).

(2) The agreement shall set out what has been agreed to with respect to care services and meals and the charges for them. 2006, c. 17, s. 139 (2).

(3) If, on application by a tenant, the Board determines that subsection (1) or (2) has not been complied with, the Board may make an order for an abatement of rent. 2006, c. 17, s. 139 (3).

140 (1) Before entering into a tenancy agreement with a new tenant in a care home, the landlord shall give to the new tenant an information package containing the prescribed information. 2006, c. 17, s. 140 (1).

(2) The landlord shall not give a notice of rent increase or a notice of increase of a charge for providing a care service or meals until after giving the required information package to the tenant. 2006, c. 17, s. 140 (2).

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O. Reg. 516/06: GENERAL (under Residential Tenancies Act, 2006, S.O. 2006, c. 17)

2. (1) As part of health care services, rehabilitative services, therapeutic services and services that provide assistance with the activities of daily living, the following are included in the definition of “care services” in subsection 2 (1) of the Act:

1. Nursing care.

2. Administration and supervision of medication prescribed by a medical doctor.

3. Assistance with feeding.

4. Bathing assistance.

5. Incontinence care.

6. Dressing assistance.

7. Assistance with personal hygiene.

8. Ambulatory assistance.

9. Personal emergency response services. O. Reg. 516/06, s. 2 (1).

(2) The following services are included in the definition of “care services” in subsection 2 (1) of the Act if they are provided along with any service set out in subsection (1):

1. Recreational or social activities.

2. Housekeeping.

3. Laundry services.

4. Assistance with transportation. O. Reg. 516/06, s. 2 (2).

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47. The information package referred to in section 140 of the Act must contain the following information:

1. List of the different types of accommodation provided and the alternative packages of care services and meals available as part of the total charge.

2. Charges for the different types of accommodation and for the alternative packages of care services and meals.

3. Minimum staffing levels and qualifications of staff.

4. Details of the emergency response system, if any, or a statement that there is no emergency response system.

5. List and fee schedule of the additional services and meals available from the landlord on a user pay basis.

6. Internal procedures, if any, for dealing with complaints, including a statement as to whether tenants have any right of appeal from an initial decision, or a statement that there is no internal procedure for dealing with complaints. O. Reg. 516/06, s. 47.

Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008

13 (1) A person with a developmental disability who wishes to receive services and supports from a service agency or direct funding for services and supports under this Act, or both, may submit an application for such services and supports or for such funding to the application entity designated for the geographical area in which the person resides. 2008, c. 14, s. 13 (1).

(2) An application under subsection (1) may be made on behalf of a person with a developmental disability, by a member of the person’s family, by the person’s caregiver or by any other person. 2008, c. 14, s. 13 (2).

(3) An application under subsection (1) may specify that the application is for,

(a) services and supports provided by service agencies under this Act;

(b) direct funding for services and supports; or

(c) a combination of some services and supports from service agencies and some direct funding. 2008, c. 14, s. 13 (3).

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22 A service agency shall comply with any prescribed requirements with respect to the operation of the agency, including any requirements relating to the composition of its board of directors, if any, the agency’s by-laws or the qualifications of any employees of the agency or of any other persons who provide services and supports on behalf of the agency. 2008, c. 14, s. 22.

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38 The Lieutenant Governor in Council may make regulations,

(a) providing for any matter that is referred to in this Act as being prescribed, as being authorized by, specified in or provided for in the regulations or as being made or done in accordance with the regulations;

(b) defining “significant limitations” for the purposes of subsection 3 (1);

(c) prescribing additional services and supports to which this Act applies for the purposes of paragraph 7 of subsection 4 (1) and defining “social and recreational activities”, “work activities” and “volunteer activities” for the purposes of the definition of “community participation services and supports” in subsection 4 (2) and defining “intensive support” for the purposes of the definition of “intensive support residence” in subsection 4 (2);

(d) respecting the powers and duties of a Director;

(e) governing application entities and funding entities, including the designation of entities, other than service agencies or corporations, as application entities or funding entities, prescribing the powers and duties of application entities and funding entities and respecting funding agreements made between the Minister and application entities or funding entities under subsection 8 (10);

(f) governing funding agreements made between the Minister and service agencies under section 10;

(g) governing direct funding and direct funding agreements made under section 11 between an application entity and either a person with a developmental disability or another person acting on that person’s behalf;

(h) governing applications for services and supports or for funding made by or on behalf of persons with developmental disabilities under Part V, including determinations of eligibility for such services and supports and funding and prioritization for services and supports and funding;

(i) governing the powers of a manager appointed under section 31;

(j) governing reviews of an appointment conducted under subsection 31 (5) and requests for such reviews;

(k) governing service agencies, including their operation, the composition of their board of directors, if any, and the qualifications of their employees or of any other persons who provide services and supports to, or for the benefit of, persons with developmental disabilities;

(l) governing the provision of services and supports by service agencies to, or for the benefit of, persons with developmental disabilities, including the provision of residential services and supports;

(m) governing residences for persons with developmental disabilities in which residential services and supports are provided and prescribing additional types of residences for the purposes of the definition of “residential services and supports” in subsection 4 (2);

(n) respecting intensive support residences and supported group living residences, including the standards applicable to the construction and maintenance of such residences, the health and safety of residents, the requirements for staff and volunteers and their qualifications, the provision of services and supports to residents, the maintenance of records and the rules governing physical restraint of residents and the training of staff in relation to the use of physical restraint;

(o) respecting training programs for staff and volunteers of application entities, funding entities and service agencies;

(p) governing practices and procedures relating to complaints received from persons with developmental disabilities or others, including establishing a complaints process for such complaints or requiring application entities, funding entities and service agencies to establish a complaints process in accordance with the regulations;

(q) respecting any transitional matters that the Lieutenant Governor in Council considers necessary or advisable to effectively implement this Act, the regulations or any provisions of this Act or the regulations. 2008, c. 14, s. 38; 2009, c. 33, Sched. 8, s. 6 (5); 2023, c. 9, Sched. 33, s. 8.